Norton v. Payne

• Decision Date: 31 October 1929
• Docket Number: 21997.
• Citation: 154 Wash. 241,281 P. 991
• Parties: NORTON v. PAYNE et ux.
• Court: Washington Supreme Court

281 P. 991

154 Wash. 241

NORTON v. PAYNE et ux.

No. 21997.

Supreme Court of Washington

October 31, 1929

Department 2.

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

Action by Ruby Norton, a minor, by her guardian ad litem, Margrete Norton, against Penny Payne and wife. From a judgment dismissing action, plaintiff appeals. Reversed and remanded.

James W. Anderson, of Tacoma, for appellant.

W. E Gwynn, of Tacoma, for respondents.

HOLCOMB J.

This action was brought for an infant aged 5 years, by her guardian ad litem, for injuries sustained by being struck in the eyeball with a stick in the hand of a child of respondent, aged 7 years, possessed of the habit of striking smaller children in the face with sticks. It is also alleged that the parents of the child causing the injury knew about and encouraged her in her habit of striking other children with sticks. The evidence of both parties was introduced upon a trial to the court and a jury, but the court at the conclusion of all the evidence granted an involuntary nonsuit, discharged the jury, and dismissed the action with prejudice.

There was evidence on the part of appellant that in a very short time after the affair respondent, the husband, made an admission to appellant, the mother of the injured child, that his daughter had the 'dirty habit of picking up sticks and hitting.' The mother of the offending child also stated to the mother of the injured child that, after the striking of the Norton child, her husband had mentioned to her the habit of their daughter Marjorie of picking up sticks and hitting other children, and that her husband upheld her in her conduct.

There was also evidence that Marjorie had struck another child with a berry box cleat before the Norton affair.

During the trial, the trial court rejected testimony offered on behalf of appellant to the effect that immediately after she had been hurt, Ruby, the injured child, stated to her mother that Marjorie hit her with a stick because she (Ruby) wanted to go home and Marjorie did not want her to go; thereby tending to show that the assault was not provoked by Ruby and that there was no fault on her part. This was rejected by the trial judge because the rule allowing statements constituting part of the res gestae was applicable only in criminal cases.

There was evidence on behalf of appellant that quite serious and painful injuries were sustained by the child and substantial expense incurred for medical and hospital services.

An involuntary nonsuit and dismissal of the plaintiff's cause of action is like a directed verdict or granting a judgment notwithstanding the verdict after verdict by the trial court. If there is competent proof to be considered by the jury, which would sustain a recovery, it should not be granted. Fobes Supply Co. v. Kendrick, 88 Wash. 284 152 P. 1028; Godefroy v. Hupp, 93 Wash. 371, 160 P. 1056, Ann. Cas. 1918E, 494; Fisher v. Tacoma Railway & Power Co., 148 Wash. 122, 268 P. 180.

The fact that there was evidence on behalf of the defendant controverting that of the plaintiff is not to be considered upon such motions. Bullock v. Stanley, 72 Wash. 204, 130 P. 95; Sutherland & Brewer v. Lewis River Boom & Logging Co., 73 Wash. 75, 131 P. 455; Davies v. Rose-Marshall Coal Co., 74 Wash. 565, 134 P. 180.

Respondents contend, and the trial court agreed, that the issues raised by the pleadings in this case were three:

(1) Was respondents' child possessed of the habit of striking other children with sticks?

(2) Was the parents' knowledge of their child's propensity, if there was a propensity, such as to render them liable for the acts of their child?

(3) If they had knowledge of this habit, did they use such care as ordinarily prudent persons would have used to prevent any injury to appellant's child?

It is then asserted by respondents that evidence was received on the first two of these issues and none upon the third in support of appellant's cause of action.

It is therefore conceded that there was evidence introduced on behalf of appellant that respondents' child had the habit of striking other children with sticks, and that there was knowledge on the part of the parents of their child's propensity.

The pivotal issue, according to respondents' view, is that there was no evidence that respondents failed to use such care as ordinarily prudent persons would have used to prevent any injury to appellant's child.

It is clear that there is no evidence that respondents actually participated in the wrongful act of their child.

But negligence is one of the things that is to be inferred from the circumstances if the other two propositions were sufficiently established by competent evidence to go to the jury.

It is true that parents are not liable for torts committed by their minor children without participation in the fault by the parent; and it is not enough to make the father liable that he knew that his child was heedless or vicious. 20 R. C. L. 627.

But by the same authority it seems to be stated as a general rule that the parent is liable if he was himself guilty of negligence. He is liable, however, only for his own fault and not that of his child.

While it is also true that the parents did not actually participate in the particular tort here in controversy, they did know of the habit of their child of striking other children with sticks. They were bound to know that was a habit liable to cause injury to other children, especially smaller children. No one could be so familiar with the habit of a child of that age as the parent, and while the parent cannot be held to the degree of liability of one harboring a vicious dog after notice of its viciousness, or a wild animal, we think parents should be held responsible and liable for a dangerous habit of a child of which they have knowledge and take no steps to correct, or restrain. It is that which constitutes the negligence on the part of the parent.

It is stated in 29 Cyc. 1667 as the rule that, 'if a father knows that his minor child is committing a tort and makes no effort to restrain him, he will be deemed to have authorized or consented to its commission so as to render him liable.'

Certainly, his knowledge of the habit may be shown by his declarations.

True in this case, there is no evidence that the father knew his child was committing this particular tort and, in fact, the evidence is to the contrary; but the evidence is that the parents knew that their child was guilty of committing this particular kind of tort habitually; that the father encouraged her therein; which implies that he made...